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INTERNATIONAL^ LAW. 



t;Jt!^=if=i 



SPEECH 



OF 



( 



\ CHAS. P"" 



OF MASSACHUSETTS, 



Y^ THE SEi^TATE OF THE UNITED STATES, 



Thursday, January 9, 1862 



WASHINGTON, D. C. 

iCAMMELL i CO.; PRINTERS, CORNER OP SECOND k INDIANA AVENUE, THIRD FLOOR. 

•1862. 






61505 



t06 



> 



SP'EECH. 



TUc hour having arrived for tlie consideration of tlie 
special order, ttic Senate i-rocecdod to consider tlie nuitioa 
of Mr. SuMXER, to refer to tbe Committee on Foreign Itela- 
tions the message of the President, received on the 6th 
instant, relative to tbe recent removal of certain citizens of 
the United !~tatts from the British mail steamer Trent, by 
order of Captain Wilkes, in command of the United States 
^■ar steamer San Jacinto. 

Mr. SUMNER said : 

Mr. President, every principle of iaterna- 
tioual law, when justly and authoritatively 
settled, becomes a safeguard of peace and a 
landmark of civilization. It constitutes a part 
of that code which is the supreme law, above 
all municipal laws, binding the whole com- 
monwealth of nations. Such a settlement may 
be by a general congress of nations, as at Mun- 
ster, Vienna, or Paris ; or it may be through 
the general accord of treaties ; or it may be by 
a precedent established under such conspicu- 
ous circumstances, with all nations as assent- 
ing witnesses, that it shall at once become iu 
itself a commanding rule of international con- 
duct. Especially is this the case, if disturbing 
pretensions long maintained to the detriment 
of civilization are practically renounced by 
the Power which has maintained them. With- 
out any congress or treaties, such a precedent 
has been established. 

Such a precedent ought to be considered 
and understood in its true character. In un- 
dertaking to explain it, I shall speak for myself 
alone ; but I shall speak frankly, according to 
the wise freedom of public debate, and the plain 
teachings of history on the question involved, 
trusting sincerely that what I say may con- 
tribute something to elevate the honest patriot- 
ism of the country, and perhaps to secure that 
tranquil judgment which will render this pre- 
cedent the herald, if not the guardian, of in- 
ternational harmony. 

Two old men and two younger associates, 
recently taken from the British mail packet 
Trent on the high seas by order of Captain 
Wilkes of the United States navy, and after- 
wards detained in custody at Fort Warren, 
have been liberated, aud placed at the dispo- 



sition of the British Government. This liaa 
been done at the instance of that Government,* 
courteously conveyed, and founded on the 
assumption that the original capture of these 
men was an act of violence which was an 
affront to the British flag, and a violation of 
international law. This is a simple outline of 
the facts. But in order to appreciate the value 
of this precedent, there are other matters which 
must be brought into view. 

These two old men were citizens of the 
United States, and for many years Senators. 
One was the author of the fagitive-slave bill, 
and the other was the chief author of the fiUi- 
bustering system which has disgraced our na- 
tional name and disturbed our national peace. 
Occupying places of trust and power in the 
service of their country, they conspired against 
it, and at last the secret traitors and conspirators 
became open rebels. The present rebellion, uot? 
surpassing in proportions, and also in wicked- 
ness, any rebellion in history, was from the be* 
ginning quickened and promoted by their untir- 
ing energies. That country to which they owed 
love, honor, and obedience, they betrayed, and 
gave over to violence and outrage. Treason, 
conspiracy, and rebellion, each in succession, 
have acted through them. The incalculable 
expenditures which now task cur national re- 
sources, the untold derangement of affairs, not 
only at home, but also abroad, the levy of 
armies, almost without an example, the devasta- 
tion of extended regions of territory, the plun- 
der of peaceful ships on the ocean, and the 
slaugher of fellow-citizens on the murderous 
battle-field ; such are some of the consequences 
proceeding directly from them. To carry for- 
ward still further the gigautic- crime of which 
they were so large a part, these two old men, 
with their two younger associates, stole from 
Charleston on board a rebel aieamer, and under 
cover of darkness and stjrm, running the 
blockade, and avoiding the cruisers in that 
neighborhood, succeeded in reaching the neu- 
tral island of Cuba, where, with open display 



a^d the knowledge of the British consul, they j Haralet was armed with the rapier of Lasrtes 
embarked on board the British mail packet, i and Laertes was armed with the rapier of Ham- 
the Trent, bound for St. Thomas, whence they let. And now on this sensitive question a sim- 
were to embark for England, in which king- [ ilar exchange has occurred. Great Britain is 
dom one of them M'as to play the part of am- | armed with American priuciplca, while to us 
bassador of the rebeliion, while the other was ; is left only those British principles which, 
to play the same part in France. The original j throughout our history, have been constantly, 
treason, conspiracy, and rebellion of which j deliberately, and solemnly rejected, 
they were so heinously guilty, were all con- j Lord Russell, in his dispatch to Lord Lyons, 
tinued on this voyage, which became a prolon- { communicated to Mr. Seward, contents himself 
gation of the original c;-ime, destined to still j by saying that '"it appears that certain individ- 
further excess, through their ambassadorial ! uals have been forcibly taken from on board 



pretensions, which, it was hopecT, would array 
two great nations ag&inst the United States, 
and enlist them openly in behalf of an accursed 
slaveholding rebellion. While oa their v/ay, 
the ambassadors were arrested by Captain 
Wilkes, of the United States steamer San Ja- 
cinto, an accomplished officer, .already* well 
known by his scientific explorations, who, on 
this occasion, acted without instructions from 
his Government. If, in this arrest, he forgot 
for a moment the fixed policy of the Republic, 
which has been from the beginning like a 
frontlet between the eyes, and transcended the 
law of nations, as the United States have al- 
ways declared it, his apology must be found 
in the patriotic impulse by which he was in- 
spired, and the British examples which he could 
not forget. They were the enemies of his coun- 
try, embodying in themselves the triple essence 
of worst enmity — treason, conspiracy, and re- 
bellion ; and they wore a pretended ambassa- 
dorial character, which, as he supposed, ac- 
cording to high British authority, rendered 
them liable to be stopped. If, in the ardor of 
an honest nature, Captain Wilkes erred, he 
might well say : 

" Who can be wise, amazed, temperate, and furious, 
Loy;il auQ neutral, in a moment? No uian. 
The expedition of my violent love 
Outran the pauser. reason. 

" Who could refrain 
That had a heart to love, and in that heart 
Courage to make Ills love known ? " 

If this transaction be regarded exclusively in 

the light of British precedents ; if we follow the 

seeming authority of the British ad 

speaking by its greatest voice ; and es 

it we accept the oft-repeated example of jLj^ioi&u i -.• . j i .. ^ -v . .. i :l i i • ^^ 

,-o^,., ;,^i,^iri u„ tu^ -Rv-r- u Vi ^ vitiated by the lailure to take the packet into 

cruisers, upheld by the Britisn Government] , r -^ i ^- m.- r -i u u^ 

^„;, ct fV>«%.ft ,.o,,^^t„j r,,.^+~,.t-„ ^e ^i, TT •. - ' port for conaemnation-. ihis failure has been 
aga\ust the oit-reneatea protests oi the Unitea i . • , ,• • i u- 

e ,<-„„ ^„ o-h„ii ,tf fi.,;i ff A;ffi^ n « • j- *. ^-Qe occasion oi much unprofessional objurga- 
biates, w.e shall not nnd it Gimcult to vindicate '• i •* t, i i <.• u ?j 

•*■ ^l „ o^*. K«„^,. „„ „(.-^ IT 1 I I tion ; and it has been emphatically repeated 

it. ihe act becomes questionable only when j ,, ,'-^ • -i i . ^ ^ ,^ \ »i 

1. ^ „!,+ +^ fi,^ t^,-,.v,c<.^,\ ^f+i-,^„^ ri 1 • I that it was impossible to consent tnat the cus- 

brought to the touchstone ot these liberal prin- 1 . ■■ i-^i ■ j- -i i • .• u i.i k« 

• 1 u;^\. f^^.-.-. -lU^ ^r. r i. *• ^ Li. tody 01 the individuals in question should be 

cipies, which, Irom the earnest times, the i ^-^ • i u i>- i • t^^ 

A • p^^„ t- u„„ ^ 1 J -, determined bv a navy ofncer on his quarter 

American Government has openly avowed ana ' - - ■' -■ > , 

sought to advance, and which other European 



ibly 
a British vessel, the ship of a neutral Power, 
while such vessel was pursuing a lawful and 
innocent voyage — an act of violence which v/as 
an affront to the British flag, and a violation of 
international law." Here is a positive assertion 
that the ship, notoriously having on boar.^. the 
rebel emissaries, was pursuing a lawful and in- 
nocent voyage ; but there is no specification 
of the precise ground on which the act in ques- 
tion is regarded as a violation of international 
law. Oi course, it is not an aflVont : for an ac- 
cident can never be an affront to an individual 
or to a nation. 

But public report, authenticated by the con- 
curiing testimony of various authorities, Eng- 
lish and continental, forbids us to continue igno- 
rant of the precise ground on which this act is 
presented as a violation of international law. 
It was admitted that a United States man of- 
war, meeting a British mail steamer beyond 
the territorial limits of Great Britain, might 
subject her to visitation and search ; also that 
the United States ship-of-M'ar might put a prize 
crew on board the British steamer, and carry 
her off to a port of the United States for adju- 
dication by a prize court there; but that she 
would have no right to remove the emissaries, 
who were not apparently officers in the military 
or naval service, and carry them off as prison- 
ers, leaving- the ship to pursue her voyage. 
Under the circumstances, in the exercise of c^ 
belligerent right, the British steamer, with all 
on board, might have been captured and car- 
ried off j> but according to the British law o!fi- 



',: '■' - cers, on whose professional opinion the British 
'^/„^.' Y I Cabinet has acted, the whole proceeding was 
3t Uritish i •,•■, J 1 ,, n ■< ^ ^ ^ U ,„i„^- t„ 



nations have accepted with regard to the sea. 
Indeed, Great Britain cannot complain except 
by now adopting those identical principles ; 
and should we undertake to vindicate the act, 
it can be done only by repudiating those iden- 
tical principles. Our two cases will be reversed. 
In the struggle between Laertes and Hamlet, 
the two combatants exchanged rapiers ; so that 



deck, so as to supersede the adjudication of a 
prize court. This has been confidently stated 
by an English writer, assuming to put the case 
for his Government, as follows : 

"It is not to the right of search that we ob- 
' ject, hut to the following seizure, without pro- 
' cess of law. What we deny is, the right of a 
' naval officer to stand in place of ajirize court, 
' and adjudicate, sword iu hand, with a sic tola 



' sicjuief) on the very deck which is a part of 
' onr territory." 

Thus it appears that the present eomplaiut 
of the British Gov(?rnment is not founded on 
the assumption by the American wai* steamer 
of the bellij^orent ritjht of search ; nor on the 
,G;round that this right was exercised on board 
a neutral vessel between two neutral ports ; 
nor that it was exercised on board a mail 
steamer, sustained by a subvention from the 
Crown, and officered In part frorn the rojal 
navy; nor that it was exercised in a case where 
the" penal cies of contraband conkl not attach ; 
but it is founded simply and precisely on the 
idea that persons other than apparent officers 
iu the military or naval service, cannot be taken 
out of a neutral ship at the mere will of the 
officer who exercises the ri.srht of search, and 
without any form of trial. Therefore, the law 
of nations Jias been violated, and the conduct 
of Captain Wilkes must be disavowed, while 
men, who are traitors, conspirators, and rebels, 
p.'l in one, are allowed to go free. 

Surely, that criminals, though dyed in oruilt. 
.'lould go free, is better fliau that the law of 
nations should be violated, esj^cially in any 
rule by wliich war is restricted and the mood 
of l-'eaee is enlarged ; for the law of nations 
cannot be violated without overturning the pro- 
tection of the ir.noce'it as well as the guilty. 
On this general principle there can be no ques- 
tion. It is but an illustration of that iraporiaut 
maxim, recorded in the Latin of Fortescae, 
'■ Better that many guilty should escape than 
one innocent man siiould suffer," with this dif- 
ference, t^iat in the present case a few guilty 
escape, waile the innocent everywhere on the 
sea obtain new security. And this security 
beconies more vrvluable as a triumph of civili- 
zation, when it is considered that it was long 
refused, even at the cannon's mouth. 

Do not forget, air, that the question involved 
in this coniroversy is strkth/ a question of law — 
precisely iike a question of trespass between 
two neighbors. Ttie Bi'ilish Cabinet began pro- 
ceedings by taking the opinion of their law ad- 
visers, precisely as an individual begins pro- 
ceedings in a suit at law by taking tiie opinion 
of his attorney. To make such a question a 
case of w^r, or to suggest that war is a proper 
mode of deciding it, is simply to revive, in co- 
lossal propoitions, the exploded ordeal by bat^ 
tie, and to imitate those dark asros when such 
proceeding was openly declared toTbe the best 
and most honorable mode of deciding even au 
abstract point of law. '"It was a matter of 
doubt and dispute," says an early i^istorian, 
"whether the eons of a son cught to be reckon- 
ed among the children of the family, 'and suc- 
ceed equally with their uncles, if their lather 
happened to die while their grandfather was 
alive. An assembly v/as called to deliberate 
OD this point, and it was trie gen* ral opinion 
that it ought to be remitted to the examination 
and decision of judges. But the Eniperor, fol- 



lowing a better course, and desirous of dealing 
honorably with his people and nobles, appoint- 
ed tb? m&tter to bo decided by battle between 
two champions." In similar spirit has it been 
latterly proposed, amidst the amazement of the 
civilized world, to withdrav/ the point of law, 
now raised by Great Britain, from peaceful ad- 
judication, and submit it to trial by combat. 
Bat the irrational anachronism of such a prop- 
osition becomes more flagrant from the incoa- 
sisiency of the party which makes it; for it can- 
not be forgotten that, in times past, on this 
iclcnfical point of laio, Great Britain persistent- 
ly held an opposite ground from that which she 
now takes. 

The British complaint seems to have been 
narrowed down to a single point ; but it is not 
to be disguised that there are yet other poinds 
on v/hich, had the ship been carried into port 
for adjudication, controversy must have arisen. 
Not to omit anything important, let me say that 
the three following points, among others, have 
-been presented in the case: 

1. That the seizure of the rebel emissaries, 
without taking the ship into port, was v/rong, 
inasmuch as a navy officer is not entitled to sub- 
siitnie himself for a judicial tribunal. 

2. That had the ship been carried into port, 
it would not have been liable on account of the 
rebel emissaries, inasmuch as neiitral ships are 
free to carry all persons not apparently in the 
military or naval service of the enemy. » 

3. Are dispatches contraband of war, so as 
to render the ship liable to seizure? 

4. Are neutral ships, carrying dispatches, 
liable to be stopped between two neutral ports? 

These matters I shall consider in their order, 
giving special attention to the first, which is the 
pivot of the British complaint. If in this dis- 
cussion I shall expose grievances which it 
were better to forget, be assured it is from no 
willingness to revive the buried animosities 
they once so justly aroused, but simply to ex- 
hibit the proud position on this question which 
the United States early and constantly main- 
tained. 

A question of international law should not 
be presented on any mere argunientum ad hom- 
inem. It would be of little value to show that 
Captain Wilkes was sustained by British au- 
thority and practice, if he were condemned by 
international law .as interpreted by his own 
country. It belongs to us now, nay, let it be 
our pride, at any cost of individual preposses- 
sions or transitory prejudices, to uphold that 
law in all its force, as it was often declared by 
the best men in onr history, and illustrated by 
national a-cts ; and let us seize the present oc- 
casion to consecrate its positive and unequivo- 
cal recognition. In exchange for the prison- 
ers set free, we liceive fiX)m Great Britain a 
practical assent, too long deferred, to a princi- 
ple early propounded by our country, and, stand- 
ing forth on every page of our history. The 
same voice which asks for their liberation, re- 



6 



nounces ib the same breath an odious preten- 
eion, for whole generations the scourge of peace- 
ful commerce. 

Great Britain throughout her municipal his- 
tory has praotically contributed to the estab- 
lishment of freedom beyond all other nations. 
There are at least seven institutions or princi- 
ples which she has given to civilization: first, 
the trial by jury ; secondly, the writ of habeas 
corpus; thirdly, the freedom of the press; 
fourthly, bills of rights ; tifthly, the representa- 
tive system ; sixthly, the rules and orders of de- 
bate, constituting parliamentary law ; and sev- 
enthly, the principle that the air is too pure for 
a slave to breathe — long ago declared and first 
made a reality by British law. No other na- 
tion can show such peaceful triumphs. But 
while thus entitled to our gratitude for glorious 
contributions to municipal law, we turn with 
dissent and sorrow from much which she has 
sought to iasten on international law. In mu- 
nicipal questions. Great Britain drew inspira- 
tion from her own native common law, which 
was instinct with freedom; but especially in 
maritime questions arising under the law of 
nations this Pov.-er seems to have acted on that 
obnoxious principle of the Roman law, posi- 
tively discarded in municipal questions, Quod 
principi j^^acuit legis vlyorem habet, and too 
often, under this inspiration, to have imposed 
upon weaker nations her own arbitrary will. 
The.time has been when she pretended to sov- 
ereignty over the seas surrounding the British 
Isles, as far as Cape Finisterre to the south, 
and Vanstaten, in Norway, to the north. Bat 
driven from this pretension, other pretensions, 
less local but hardly less offensive, were avowed. 
The boast of " Rule, Britannia, rule the waves,'' 
was practically adopted by British courts of ad- 
miralty, and universal maritime rights were 
subjected to the special exigencies of British 
interests. In the consciousness of strength, 
f>Ed with a navy that could not be opposed, this 
Power has put chains upon the sea. 

The commerce of the United States, as it 
began to whiten She ocean, was cruelly deci- 
mated by these arbitrary pretensions. Ameri- 
can ships and cargoes, while, in the language 
of Lord Russell. " pursuing a lav/ful aud inno- 
cent voyage," suffered from the British admir- 
alty courts more than from rock or tempest. 
Shipwreck was less frequent than confiscation; 
and when it came it was easier to bear. But 
the loss of property stung less than the outrage 
of irapreasment, by whicli foreigners, under the 
protection of the American flag, and also 
American citizens, without any form of trial, 
and at the mere mandate of a navy officer, who 
for the moment acted as a judicial tribunal, 
■were dragged away from the deck which should 
have been to them a sacred altar. This outrage, 
which was feebly vindicated by the municipal 
claim ,of Great Britain to the services of her 
own subjects, was enforced arrogantly and 
perpetually on the high seas, where municipal 



law is silent and international law alone pre- 
vaiJs. The belligerent right of search, derived 
from international law, was employed for this 
purpose, and the quarterdeck of every British 
cruiser ^vas made a floating judgment-seat. 
The practice began early, and was continued 
constantly; nor did it discriminate among its 
victims. It is mentioned by Mr. Jefferson, and 
repeated by a British writer on international 
law, that two nephews of Washington, on their 
way from Europe, were ravished from the 
protection of the American flag, without any 
judicial proceedings, and placed as common 
seamen under the ordinary discipline of British 
ships-of-war. The victims were counted by 
thousands. Lord Castlereagh himself admit- 
ted, on the floor of the House of Commous, 
that an inquiry instituted by the British Gov- 
ernment had discovered in the British fleet 
three thousand five hundred men claiming -4,0 
be impressed Americans. At our Department 
of State six thousand cases were recorded, and 
it was estimated that at least as many more 
might have occurred, of which no information 
had been received. Thus, according to this 
official admission of the British minister, there 
was reason to believe that the quarter-deck of 
a British man-of-war had been made a floating 
judgment-seat three thousand five hundred 
times, while, according to the records of our 
own State Department, it had been made a 
floating judgment-seat six thousand times and 
upwards; and eaca time an American citizen 
had been taken from the protection of his flag 
without any form of trial known to the law. 
If a pretension so Intrinsically lawless could 
be sanctioned by precedent. Great Britain 
would have succeeded in interpolating it into 
the law of nations. 

Protest, argument, negotiation, correspond- 
ence, and war itself — unhappily the last reason 
of republics as of kings — were all employed in 
vain by the United States to procure a renunci- 
ation of this intolerable pretension. The ablest 
papers in our diplomatic history are devoted to 
this purpose ; and the only serious war in which 
we have been engaged, until summoned to en- 
cottnter this rebellion, was to overcome by arms 
this very pretension, which would not yield to 
reason. Beginning in the last centurj, the cor- 
respondence is at last closed by the recent reply 
of Mr. Seward to Lord Lyons. The long-con- 
tinued occasion of conflict is now happily re- 
moved, and the pretension disappears forever — 
to take its place among the curiosities of the 
past. 

But I do not content myself with asserting 
the persistent opposition of the American Gov- 
ernment. It belongs to the argument, that I 
should exhibit this opposition and the precise 
ground on which It was placed — being identi- 
cal with that now adopted by Great Britain. 
j And here the testimony is complete. If you 
I will kindly follow me, you shall see it from 
' the beginning in the public life of our country, 



and iu the authentic records of our Govern- 
ment. 

This British pretension aroused and startled 
the Administration of Washington, and the 
pen of Mr. Jefferson, his Secretary of State, 
■was enlisted against it. In a letter to Thomas 
Pinckney, our Minister at London, dated June 
11. 1792, he said: 

" The simplest rule will be, that the vessel 
' being American shall be evidence that the 
' seamen on board her are such."' 

In another letter to the same minister, dated 
October 12, 1792, he calls attention to a case 
of special outrage, as follows: 

"I inclose you a copy of a letter from Messrs. 

* Blow and Melhaddo, merchants of Virginia, 
' complaining of the taking away of their sail- 
' ors on the coast of Africa by the commander 
' of a British armed vessel. So many instances 

* of this kind have happened that it is quite ne- 
' cessary that their Government should explain 
' themselves on the subject, and be led to dis- 

* avow and punish such conduct." — State Pa- 
pers, vol. 3, p. 574. 

The same British pretension was put forth 
under the Administration of John Adams, and 
was again encountered. Mr. Pickering, at that 
time Secretary of State, in a letter to Rufus 
King, our Minister at London, dated June 8, 
1796, after repeating the rule proposed by Mr. 
Jefferson, says : 

" But it will be an important point gained, 
' if on the high seas our fag can protect those 

* of whatever nation who shall sail under it. 
' And for this humanity, as well as interest, 
' powerfully plead." — State Papers, vol. 3, p. 
439. 

And again, at a later day, during the same 
Administration, Mr. Marshall, afterwards the 
venerated Chief Justice of the LTnited States, 
and at the time Secretary of State, in his in- 
structions to Rufus King, at London, dated 
September 20, ISOO, says : 

" The impressment of our seamen is an in- 
' jury of very serious magnitude, which deeply 
' affects the feelings and the honor of the na- 
' tion," * * ^ * .( Alien sea- 
' men, not British subjects, engaged iif our 
' merchant service, ought to be equally exempt 
' with citizens. Britain has no pretext of right 
' to their persons or to their service. To tear 
' theyn from our possession is at the same time 
' an insult and an injury. It is an act of vio- 
' lence for which there exists no palliative." — 
State Papers, vol 2, p. 489. 

The same British pretension showed itself 
constantly under the Administration of Mr. 
JefferSon. Throughout the eight years of his 
Presidency, the repeated outrages of British 
cruisers never for a moment allowed it to be 
forgotten. Mr. Madison, during this full period, 
wj»3 Secretary of State, and none of the varied 
productions of his pen are moi'e masterly than 
those in which he exposed the tyranny of this 
pretension. In the course of this discussion he 



showed the special hardship found in the fact 
that the sailors were taken from the ship at the 
mere will of an officer, without any form of ju- 
dicial proceedings, and thus early presented 
against the pretension of Great Britain the pre- 
cise objection which is now adopted by her. 
Here are his emphatic words, in his celebrated 
instructions to Mr. Monroe, at that time our 
Minister at Loiidon, dated January 5, 1804: 

" Taking reason and justice for the tests of 
' this practice, it is peculiarly indefensible, be- 
' cause it deprives the dearest rights of persons 
' of a regular trial, to which the most incon- 
' siderable article of property captured on the 
' high seas is entitled, and leaves the destiny to 
' the will of an officer, sometimes cruel, often 
' ignorant, and generally interested, by want of 
' marinerSjinhis own decisions. Whenever prop- 
' erty found in a neutral vessel is supposed to 
' be liable, on any ground, to capture and con- 
' demuation, the rule in all cases is, that the 
' question shall not be decided by the captor, 
' but be carried before a legal tribunal, where 
' a regular trial may be had, and where the 
' captor himself is liable to damages for an 
' abuse of his power. Can it be reasonable, 
' then, or just, that a belligerent commander 
' who is thus restricted, and thus responsible 
' in a case of mere property of trivial amount, 
' should be permitted, without rcciuring to any 
' tribunal whatever, to examine the crew of a 
' neutral vessel, to decide the important rpiesiion 
' of their respective allegiances, and to carry 
' that decision into execution by forcing every 
' individual he may choose into a service ab- 
' horrent to his feelings, cutting him off from 
' his most tender connections, exposing his 
' mind and his person to the most humiliating 
' discipline, and his life itself to the greatest 
'danger? Reason, justice, and humanity 
' unite in protesting against so extravagant a 
' proceeding." — State Papers, vol. 3, p. 84. 

Negotiations, on this principle, thus distinct- 
ly declared, were intrusted at London to James 
Monroe, afterwards President of the United 
States, and to William Pinckney, the most ac- 
complished master of prize law which our 
country has produced. But they were unsuc- 
cessful. Great Britain persisted. In a joint 
letter dated at London, September 11, 1806, the 
plenipotentiaries say : 

" That it was impossible that we should ac- 
' knowledge in favor of any foreign Power iJie % 
' claim to such jurisdiction on board our ves- 
' sels found upou the main ocean, as this sort 
' of impressment implied — a claim as plainly 
' inadmissible in its principle, and derogating 
' from the unquestionable rights of our sover- 
' eignty, as it was vexatious in its practical 
* consequence^." — State Papers, vol. 3, p. 134. 

In another joint letter dated at London, No- 
vember 11, 1806, the same plenipotentiaries 
say : 

"' The right was denied by the British com- 
' missioners, who asserted that of their Govern- 



8 



' meni to seize its subjects on hoard neutral 

• viercliant vessels on the hvjh seas, ajid who 
■ also urged that the relicquishment of it at 

• this time would go far to the overthrow of 

• their naval power, on which the safety of the 
' State essentially depended." — State Papers, 
vol. 3, p. 133. 

In still another letter, dated at London, 
April 22, 1807, Messrs. Monroe and Pinkney 
say of the British comfnissioners : 

" They stated that the prejudice of the navy 
' and of the country geceraliy was so strong in 
\favor of their pretension that the ministry 

• could not encounter it in a direct form ; and 
' that in truth the support of Parliament could 
' not have been relied on in such a case." — 
State Papers, vol. 3, p. 160. 

The British comniiesioners were two excel- 
lent persons, Lord Holland and Lord Auck- 
land ; hut though friendly to the United States 
in their declarations, and Liberals in politics, 
they were powerless. 

At home in the United Sts-tes the question 
continued to be discussed by able writers. 
Among those whose opinions were of the high- 
est authority, was the late President, John 
Adams, who from his retirement at Quincy 
■^cnt forth a pamphlet, dated January 9, 1809, 
in which the British pretension was touched 
to the quick: and again the precise objection 
was presented which is now urged by Great 
Britain. Depicting the scene when on'e of our 
ships is encountered by a British cruiser, -he 
says : 

" The lieutenant is to be the judge, the mid- 
' shipmau is to be clerk, and the boatswain sher- 
' iff or marshal." ***-:* "It is impossi- 

• ble to figure to ourselves, in imagination, this 
' solemn tribunal and venerable judge without 
' smiling, till the humiliation of our country 
' comes into our thoughts, and interrupts the 
' sense of ridicule by the tears of grief or ven- 
' geance." — Johi Adams's Works, vol. 9, p. 
322. 

At last all redress though negotiation was 
found to be impossible ; and this pretension, 
aggravated into multitudinous tyranny, was 
openly announced to be one of the principal 
reasons for the declaration of war against 
Great Britain in 1812. In his message to 
Congress, dated June 1, of that year, Mr. Madi- 
Eon, who was now President, thus exposed the 
offensive character of this pretension ; and his 
'^ words, directed against a persistent practice, 
are now echoed by Great Britain in the single 
instance which has accidentally occurred : 

'• Could the seizure of British subjects in 
' such cases be regarded as within the exercise 
' of a belligerent right, the acknov/ledged laws 
' of war, which forbid an article of captured 
' property to be adjudged without a regular in- 
' vestigation before a competent tribunal, worJcZ 
' imperiously demand the fairest trial lohere 
' the sacred rights of persons tvere at issue. 
' In place of such a trial, these rights are sub- 



\iected to th6 will of ever ij petty commander " — 
Statesman's Manual, vol'. 1, p. 294. 

While the war was waging, the subject was 
still discussed. Mr. Grundy, of Tennessee, in 
the House of Representatives, in a report from 
the Committee on Foreign Affairs, said : 

"' A subaltern or any other ciScer of the Brit- 
' ish navy ought not to be arbiter in such a 
' case. The liberty and lives of American citi- " 
' zens ought not to depend on the will of such 
' a party."— <S'toj;e Papers, vol. 3, p. 605. 

Such was the American ground. The Brit- 
ish pretension was unhesitatingly proclaimed 
in the declaration of the Prince Regent, after- 
wards George iV, given at the palace of West-~ 
minster, January 9, 1813 : 

" The President of the United States has, it 
' is true, since proposed to Great Britain au 
' armistice ; not, however, on the admission that 
' the cause of war hitherto relied on was re- 
' moved ; but on condition that Great Britain, 
' as a preliminary step, should do away a cause 
' of war now brought forward as such for the 
' first time, namely, that she should abandon 
' the exercise of her u^'■DOUBTED bight of search 
' to take from American merchant vessels Brit- 
' is7i seamen, the natural-born siiljecis of his 
' Majesty. 

" His Royal Highness can never admit. that, 
' in the exercise of the undoubted and hitherto 
' undisputed right of searching neutral mer- 
' chant vessels in time of war, ihe impressment 
' of British seamen, when found therein, ca« he 
' deemed any violation of a neutral fag. Nei- 
' ther can he admit that the taking of such sea- 
' men from on board such vessels can be con- 
' sidered by any neutral State as a hostile meas-. 
' ure or a justifiable cause of war.'''' 

The war was closed by the treaty at Ghent.; 
but perversely the British pretension was not 
renounced. Other negotiations in 1818, ;un- 
der President Monroe; in 1823, -.also under 
Monroe : and again in 1827, under John Quin- 
cy Adams, expressly to procure its renuncia- 
tion, were all. unavailing. At last, in 1842, at 
the treaty of Washington, Mr. Webster, calmly 
setting aside all idea of further negotiation on 
this gretension, and without even proposing any 
stipulation with regard to it, deliberately an- 
nounced the principle irrevocably adopted by 
our Government. It was the principle early 
announced at the beginning of the Repiiblic by 
Mr. Jefferson. This dispatch is one of the most 
memorable in our history, and it bears directly 
on the existing controversy when, in exposing 
the British pretension, it says : 

" But the lieutenant of a man-of-war, having 
' necessity for men, is apt to be a sunimary 
^ judge, and his decisions will be quite as sig- 
' nificant of his own wants and his own power 
' as of the truth and justice of the case." — 
JVebster's 'Works, vol, 6, p. 323. 

At a^ later day still, on the very eve of recent 
events, we find General Cass, as Secretary of 
State, in his elaborate instructions to our Mia- 



isters in Europe, dated 27tli June, 1859, de- 
clared principles y/iiich may properly coairol 
the present questioa. Hesays : 

" It is obvious, from the temper of the age, 

* that the present is no safe time to assert and 
' enforce pretensions on the part of belligerent 
' Powers aflecting the interest of nations at 
' peace, lai'ess such pretensions are clearly jus- 
' iijied bn ihc law c>f nations.'' * » * -x- 
" The stopping of neutral vessels upon the hij?h 

* seas, their foueible sntrauce, a?id the overhaul- 
' ing and examina^on of their cargoes, the seiz- 

* tire of their freight, at the ivill of a foreign. 
' officer, the frequent interruption of their voy- 
' ages by compelling them to change their des- 

* tination, ia order to seek redress; and, dhove 
' all, the abuses which are so prone to accom- 
' pany ilm exercise of unlimited power, where 

* responsibility is remote ; these, are, indsed, .se- 
' rious obstructions, little likely to be submit- 
' ted "to in the present st;itcf of the world with- 
' out a formidable effort to prevent them." 

Such is an authentic history of this British 
pretension, and of the manner in which it has 
been met by our Government. And now the 
special argument formerly directed by us against 
this pretension is directed by Great Britain 
against the pretension of Captain Wilkes to 
take two rebel emissaries from a British piicket 
ship. If Captain Wilkes is right in this preten- 
sion, then throughout all these international 
debates, extending over at least two generations, 
we have been wrong. 

But it hag been sometimes said the steam 
packet having on board the rebel emissaries 
was on this account liable to capture, and there- 
fore the error of Captain Wilkes in taking the 
emissaries was simply an error of forui and not 
of substance. I do not stop to consider whether 
aa exerciie of summary power against -vvfiich 
our Government has so constantly protested 
can be under any circumstances an error mere- 
ly of form, for the-policy of our Government, 
most positively declared in its diplomacy, and 
also attested in numerous treaties, leaves no 
room to doubt that a ne^utrsl ship with belliger- 
ent passengers — not in the military or naval 
service — is not liable to capture, and therefore 
the whole procetdiug was wrong, not only be- 
cause the passengers were taken from the ship, 
but also becaiise the ship, howsoever guilty 
morally', Tvas not guilty legally iu;eceiving such 
passengers on board. If this question were ar- 
gued on English authorities it might be other- 
wise; ; but according to American principles 
the slaip was legally innocent. Of course, I say 
nothing of the moral gtliU forever indelible in 
that ship. . . - . 

In the middle of the last century, the. Swiss 
professor, Vattel, declared that on the breaking 
out of war v/e cease to be under any obligation 
of leaving the enemy to the free enjoyment of 
his rights ; and this principle he applied loosely 
to the transit of ambassadors. (Vattel, book 4, 
cap. 7, sec. 85.) Sir William. Scott, afterwards 



known ia the peerage as Lord Stowell, quoting 
this authority, at the beginning of the present 
century, let fall these words : 

" The belligerent may stop the ambassador 
' of the enemy on his passage."' — I'he Aialanta, 
6 Eobinson R., p. 440. 

And this curt proposition, though in some re- 
spects indefinite, has been often ripeated since 
by writers on the Jiaw of nations. On its face 
it leaves the question unsettled, whether the 
emissaries of an unrecognised government can 
be stopped ? But there is another case in which 
the same British judge, who has done so much 
to illustrate international law, has used lan- 
guage which seems to embrace not only au- 
thentic ambassadors, but also pretenders to this 
character, and all others who are public agents 
of the enemy. Says this eminent magistrate : 

" It appears to me on principle to be but 
'■ reasonable that whenever it is of ^sufiicient 
' importance to the enemy that suck persons 
' should he sent out on the public service and 
' at the public expense, it should afford equal 
' ground of forfeiture against the vessel that 
' may be let out fer a purpose so intimately 
• connected with hostile operations." — The Or o- 
zemuo, 6 Robinson R., p. 4:54. 

Admit that the emissaries of an nnreeogaised 
government cannot be recognised as aipbassa- 
dors with the liabilities as well as Immunities 
of t\vi3 characfer, yet, in the face of these 
words, it is difficult to see how a Government 
bowing habitually to the authority of Sir Wil- 
liam Scott, and regarding our rebels as "bel- 
ligerents," can assert that a steam packet, 
conveying emi3S?ries from these belligerents, 
"sent out on the public service and at the ■ 
public expeilse," was, according to the lan- 
guage of Lord Russell, " pursuing a lawful 
and innocent voyage." At least, in this asser- 
tion, this Government seems to turn its back 
again upon its own history ; or it sets aside the 
facts so openly boasted with regard -to the pub- 
lic character of these fugitives. 

On this question British policy may change 
with circumstances, and British precedents 
may be uncertain, but the original American 
policy is unchangeable, and the American - 
precedents which illustrate it are solemn trea- 
ties. The words of Vattel, and the judgaients 
of Sir William Scott, were^.weil known to the 
statesmen of the United Sljfts; and yet, iii,^the 
face of these- authorities, \raich have entered 
so larjrely into this debate, the American Gov- 
erunientat an early dTiy deliberately adopted a 
contrary policy, to which, for half a century, it 
has steadily adhered. It was plainly declared 
i/iat only soldfers or officers could be stopped, 
thus positively excluding the idea of stopping 
ambassadors, or emissaries of any kind; not ia 
the military or naval service. Mr. Madison, 
who more than any other person shaped our 
national policy on maritime rights, haii stat^ed 
it on this question. In his remarkable dis- 



10 



patch to Mr. Monroe, at London, dated Janu- 
ary 5, 1804, he says : 

"The article renounces the claim to take 
' from the vessels of the neutral party, on the 
' high seas, any person whatever, not in ihe 
^ military seroicc of an enemy; an exception 
'which we admit to come within the law of 
' nations, on the subject of contraband of war. 

* With this exception, we consider a neutral 
^ flag on the high sea.^ as a safeguard to those 
' sailing under it.^' — State Papers, \o\. 3, p. 83. 

Then, again, in the same dispatch, Mr, Mad- 
ison says: 

"Great Britain, then, must produce an ex- 

* ception in the lav/ of nations in favor of the 
' right she contends for. lu what written and 
' received authority will she find it? In what 
' usage, except her own, will it be found?" * 
' * ^' '' But nowhere will she find an excep- 
' tion to this freedom of the seas and of neutral 

* flags, which justifies the taking away of any 

* person, not ff.n enemy in military service, 

* found on board a neutral vessel." — Ibid., 
p. 84. 

And then, again, in the game dispatch, he 
says : 

" Whenever a belligerent claim against per- 

* sons on board a neutral vessel is referred to 

* in treaties, enemies in military service alone 

* are excepted from the general immunity of 

* persons in that situation ; and this exception 

* confirms the immunity of those who are not 

* included in it." — Ibid., p. 84. 

It was in pursuance of this principle, thus 
clearly announced and repeated, that Mr. Mad- 
ison instructed Mr. Monroe to propose a con- 
vention between the United States and Great 
Britain, containing the following stipulation : 

" No person whatever shall, upon the high 

* seas and without the jurisdiction of either 

* party, be demanded or taken out of any ship 
' or vessel belonging to citizens or subjects of 
' one of the parties, by the public or private 
' armed ships belonging to, or in the service of 
' the other, unless such person he at the time in 

* tlie military service of an enemy of such other 

* party:'— Ibid., p. §2. 

Mr. Monroe pressed this stipulation most 
earnestly upon the British Government: but 
though treated courteously, he could get no 
satisfaction with regard to it. Loi'd Harrowby, 
the Foreign Secr^ry, in one of his conversa- 
tions, "expressedllf concern to find the United 
States oppcsed to Great Britain on certain 
great neutral questions in favor of the doctrines 
of the modern law, which he termed novelties^'' 
(State Papers, vol. 3, p. 99.) And Lord Mul- 
grave, who succeeded this acconiplished noble- 
man, persevered in the same dissent. Mr. 
Monroe writes, under date of 18th October, 
1805: 

" On a review of the conduct of this Govern- 
' ment towards the United States, I am inclined 
' to think that the delay which has been so 

* studiously sought is part of a system, and 



' that it is intended, as circumstances favor, to 
' sSbject our commerce at present and hereaf- 
' ter to every restraint in their power" — State 
Papers, vol. 3, p. 107. 

Afterwards, Mr. Monroe was joined, as we 
have already seen, by Mr. Pinkney, in the mis- 
sion 60 London, and the two united in present- 
ing this same proposition again to the British 
Government. (State Papers, vol. 3, p. 137.) 
It wa^ rejected, although the ministry of Mr. 
Fox, who was then in po^er, se^ms to have af- 
forded at one time the expectation of an agree- 
ment. 

While these distinguished plenipotentiaries 
were pressing this principle a^ London, Mr. 
Madison was maintaining it at home. In an 
unpublished communication to Mr. Merry, the 
British minister at Washington, bearing date 
9th April, 1805, which I extract from the files 
of the State Department, he declared : 

" The United States cannot accede to the 
' claim of any nation to take from their vessels 
' on the high seas any description of persons, 
* except soldiers in the actual service of the 
' enemy." 

In a reply, bearing date 12th April, 1805, 
this principle was positively repudiated by the 
British minister; so that the two Governments 
were ranged unequivocally on opposite sides. 

The treaties of the United States with foreign 
nations are in harmony with this principle, so 
energetically proposed and upheld by Mr. Mad- 
son ; beginning with the treaty of commerce 
with France in 1778, and ending only with the 
treaty with Peru in 1851. Here is the provis- 
on in the treaty with France, negotiated by 
Benjamin Franklin, whose wise forethought is 
always conspicuous: 

" And it is hereby stipulated that free ships 
shall also give a freedom to goods, and that 
everything shall be deemed to be free and 
exempt which shall be found on board the 
ships belonging to the subjects of either of the 
confederates, although the whole lading, or 
any part thereof, should appertain to the ene- 
mies of either, contraband goods being always 
excepted. It is also agreed in lite manner 
that the same liberty be extended to persons 
who are on board a free ship, with this effect, 
that although they be enemies to both or 
either party, they are not to be taken out of 
that free ship, unless they are soldiers in actual 
service of the enemies." — Statutes at Large, 
vol. 8, p. 26. 

The obvious effect of this stipulation is two- 
fold : first, that enemies, unless soldiers in ac- 
tual service, shall not be taken out of a neutral 
ship ; and, secondly, that such persons are not 
contraband of war so as to alfeet the voyage of 
a neutral with illegality. Such was the propo- 
sition of Franklin, of whom it has been said, that 
he snatched the lightning from t'le skies, and 
the sceptre from the tyrant. That he sought to 
snatch the trident, also, is attested by his whole 
diplomacy, of which this proposition is a part. 



11 



But the same principle will be found in succeed- 
ingr treaties, sometimes with a slicrht change of 
language. In the treaty with the Netherlands, 
negotiated by John Adams in 1782, the excep- 
tion is confined to " military men actually in 
the service of an enemy," [Ibid., p 38 ;) and 
this same exception will also be found in the 
treaty with Sweden, in 1782, [Ibid., p. 64;) 
with Prussia, in 1785, [Ibid., p. 90 ;) with 
Spain, in 1795, {Ihid.,\). 146:) with France, in 
1^00, {ibid., p. 181;) with Columbia, in 1824, 
(Ibid., p. 312;) with Central America, in 1825, 
{Ibid., p. :!2S ;) with Brazil, in 1828, {Ibid., p. 
393;) with Mexico, in 1531, {Ibid., p. 416 :) 
with Chili, in 1832, {Ibid., p. 436 ;) with Vene- 
zuela, in 1836, {Ibid., p. 472;) with Peru- 
Bolivia, in 1S3G, {Ibid., p. 490 ;) with Ecuador, 
in 1839, {Ibid., p. 540;) with New Granada, in 
1846, (Statutes, vol. 9, p. 883;) with Guatema- 
la, in 1849, (Statutes, vol. 110, p. 880;) with 
San Salvador, in 1850, {Ibid., p."894;) and in 
the treaty with Peru, in 1851, {Ibid., p. 936.) 
Such is the unbroken testimony, in the most 
solemn i'orm, to the policy of our Government. 
In some of the treaties the exception is simply 
*' sohiers ;" in others it is '" officers or soldiers." 
It is true that among these treaties there is 
none with Great Britain ; !^t it is also true, 
that this is simply because this Power refused 
its assent when this principle was presented by 
our Government as an undoubted part of in- 
ternational law which it desired to confirm by 
treaty. 

Clearly and beyond r.U question, according 
to American principles and practice, the ship 
was not liable to capture on account of the 
presence of emissaries, " not soldiers or offi- 
cers ;" nor could such emissaries be legally 
taken from the ship. But the om])leteness of 
this authority is increased by the concurring 
testimony of the continent of Europe. Since 
the peace of Utrecht, in 1713, the policy of the 
continental States has refused to sanction the 
removal of enemies from a neutral ship, un- 
less miUtary men in actual service. And now, 
since this debate has commenced, we have the 
positive testimony of the French Government 
to the same principle, given with special ref 
erence to the present case. !i[. Thouvenel, the 
Minister of the Emperor for Foreign Affairs, in 
a recent letter communicated to Mr. Seward, 
and published with the papeae now before the 
Senate, earnestly insists that the rebel emis- 
saries, not being military persons actually in 
the service of the enemy, were not subject to 
seizure on board a neutral ship. I leave this 
question with the remark that it is Great 
Britain aloue whose position on it can be 
brought into doubt. 

■ But still another question occurs. Beyond 
all doubt, there were '' dispatches " from the 
rebel belligerents on board the ship — such 
'' dispatches " as rebels can write. Public re- 
port, the statement of persons on board the 
ship, and the boastful declaration of JetFersoa 



Davis in a public document, that these emis- 
saries were proceeding under an appointment 
from him — v/hich appointment would be a 
" dispatch " of the highest character — seem to 
place this fact beyond denial.. Assuming this 
fact, the ship was liable to capture and to be 
carried off for adjudicatiou, according to 
British authorities — unless the positive judg- 
ment of Sir William Scott in the case of the 
Atalanta, (6 Robinson II., p 440,) and also the 
Queen's proclamation at the commencement 
ot this rebellion, where "dispatches" are enu- 
merated among contraband articles, are treat- 
ed as nullities, or so far modified in their ap- 
plication as to be words, and nothing more. 
But however binding and peremptory these 
authorities may be in Great Britain, they can- 
not be accepted to reverse the standing policy 
of the United States, which here again leaves 
no room for doubt. In order to give precision 
to the rights which it claimed, and at the same 
time accorded on the ocean, our Government 
has sought to explain in treaties what it meant 
by contraband. As early as in 1778,in the treaty 
with France, negotiated by Benjamin Frank- 
lin, after specifying contraband articles, with- 
out including dispatches, it is declared that — 

"Free goods are all other merchandise and 
' things which are not comprehended and par- 
' ticularly mentioned in the foregoing enume- 
* ration of contraband goods." — Statutes at 
Large, vol 8, p. 26. 

This was before the judgment of Sir William 
Scott, recognising dispatches as contraband ; 
but in other treaties subsequent to this judg- 
ment, and therefore practically discarding it, 
after enumerating contraband articles, without 
specifying "dispatches," the following pro- 
vision is introduced : 

"All other merchandises and things noicovA- 
' prehended in the articles of contraband ex- 
' plicitly enumerated and classified as above, 
' shall be held and considered as free." — Ibid., 
p. 312; Treaty iviih Columbia, and later trea- 
ties passim. 

Thus we have not only positive words of enu- 
meration, without mentioning " dispatches," 
but also positive words of exclusion, so that 
dispatches cannot be considered as contraband. 
These treaties constitute the conclusive record 
of our Government on this question. And 
here let me remark, that, while decisions of 
British Admiralty courts on all these matters 
are freely cited, no decisions of our Supreme 
Court are cited. Of course, if any existed, they 
would be of the highest value ; but there are 
none, and the reason is obvious. These mat- 
ters could not arise before our Supreme Court, 
because under our Government they are so 
clearly settled by treaties and diplomacy as to 
be beyond question. 

Clearly, then, and beyond all question, ac- 
cording to American principles and practice, 
the ship was not liable to capture on account 
of dispatches on board. And here, again, we 



12 



have the couciirrincr testimony of continental 
Europe, and especially of the French Govern- 
ment, in the recent letter of M. Thonvenel. 

But there is yet another question v/hich re- 
mains. Assnniitjcr tliat dispatches may be con- 
traband, would their presence on board a neu- 
tral ship, sailing between two neutral ports, 
"iider the voyage illegal? The mail steamer 

::.? sailing between Havana, a port of Snain, 
ci.d . St- Thomas, a port of De-.imark. Here, 
again, if we bow to British precedent, the an- 
swer -will be prompt. The British oracle has 
Hp9ken. In a well-considered judgment, Sir 
V7illiam Scott declares that dispatches taken 
on board a neutral ship, sailing from a neutral 
country and bound for another neutral coun- 
try, are contraband ; but that where there was 
reason to Helieve the master ignorant of their 
character, " it is not a case in which- the firop- 
erty is to be confiscated, althouoh in this, as in 
ev.<jry other instance in which the enemy's dis- 
patches are found on board a vessel, he has 
justly subjected himself to all the inconveni- 
ences of seizure and detention, and to all the 
expenses of those judicial inquiries which they 
have occasioned." (The Rapid, Edwards's 
Rep., 221.) Such is the law of nations accord- 
iiig to Great Britain. 

But even if this rule had not been positively 
repudiated by the United States, it is so incon- 
sistent with reason, and, in the present con- 
dition of maritime commerce, so utterly im- 
practicable, that it can find little favor. If a 
neutral voyage between two neutral ports is 
rendered illegal on this account, then the postal 
facilities of the world, and the costly enter- 
prises by which they are conducted, will be 
exposed to interruptions under which they 
must at times be crushed, to the infinite dam- 
age of universal commerce. If the rule is ap- 
plicable in one sea, it is applicable in all seas, 
and there is no part of the ocean which may 
not be vexed by its enforcement. It would 
reach to the Mediterranean and to the distant 
China seas as easily as to the Bahama Straits, 
and it would be equally imperative in the 
chops of the British channel. Not only the 
stately mail steanaers which traverse the ocean 
would be liable to detention and possible con- 
fiscation, but the same penalties must attach to 
the daily packets between Dover and Calais. 
The simple statement of such a consequence, 
following directly from the British rule, throws 
an instant doubt over it which the eloquent 
judgment of Lord Stowell cannot remove. 

But here, again, our way is easy. American 
principles and practice have settled this ques- 
tion also. Wheaton' commences his statement 
of the law of contraband by saying, " the gen- 
eral freedom of neutral commerce with the 
respective belligerent Powers is. subject to 
some exception. Amony these is the trade 
with the enemy in certain articles called con- 
traband of war."' (Wheaton's Elements, part 
4, cap. 3.) It -will be perceived that the trade 



must ba loith the enemj/, not with the neutral. 
And here the author followed at once the sug- 
gestions of reason and the voice of American 
treaties. Even in the celebrated treaty with 
Great Britain, negotiated by John Jay, in 
179-1, after an enumeration of contraband arti- 
cles, it is expressly declared, '" and all the 
above articles are hereby declared to be just 
objects of confiscation whenever they are at- 
icmpted to he carried to an enemy.'^ (Statutes, 
vol. 8, p. 125.) Of course, when on the way to 
neutrals ihey are free; and the early treaties, 
negotiated by Benjamin Franklin and John 
Adams, are in similar spirit ; and in pre- 
cisely the same sense is the treaty with 
Prussia, in 1S28, which, in its twelfth article, 
revives the thirteenth article *of our treaty 
with thfift same Power ia 179!5, by which 
contraband is declared to be detainable onhj 
'ichen carried to an enemy. Even if this rule 
were of doubtful authority with regard to arti- 
cles of acknowledged contraband, it is positive 
with regard to dispatches, which, as we have 
already seen, are among '' merchandises and 
things " declared to be free ; with regard to 
which our early treaties secured the greatest 
latitujde. Nothing can be broader than these 
words in the tn-eatj of 1778 with France: 

" So that they- may be transported and carried 
' in the 'freest 7nanner, even to places belonging 
' to an enemy, such towns or places being only 
' excepted as ai-e at the time besieged, blocked 
' up, or invested." — Salutes, vol. 8, p. 26. 

But the provision in the treaty with the 
Netherlands of 1782 is equally broad: 

" So that all effects and merchandises which 
' are not expressly before named may, without 
' any exception, and in perfect liberty, be trans- > 
' ported by the subjects aiid inhabitants of 
' both allies from and to places belonging to 
' the enemy, excepting only the places which 
' at the time shall be besieged, blocked, or. in- 
' vested ; and those places only shall be held 
' for such which are surrounded nearly by some 
' of the belligerent Powers." — Statutes, vol. S, 
p. 46. 

If the immunity of neutral ships needed 
further confirmation, it would^ be found again 
in the concurriLig testimony of the French Gov- 
vernment — conveyed in the recent letter of M. 
Thouvenel — which is so remarkapie for its 
brief but compr^dtehsive treatment of all the 
questions i*ivolved in this controversy. I know 
not how others may feel, but I cannot doubt 
that this communication, when rightly under- 
stood, will be gratefully accepted as a token of 
friendship for us, and also as a contribution to 
those maritime rights for which France and 
the United States, in times past, have done so 
much, together. This eminent minister does 
not hesitate to declare that if the flag of a 
neutral Cannot completely cover persons and 
merchandise beneath it in a voyage between 
two neutral ports, then its immunity will be 
but a vain word. 



10 



And now, as I conclude what I hare to say 
on contraband in its several divisions, I ven- 
ture to assert that there are two rules in regard 
to it, which the traditional policy of our coun- 
try has constantly declared, and which it has 
embodied in treaty stiimlatlons with every 
Power which could be persuaded to adopt them: 
First, that no article shall be contraband unless 
it be expressly enumerated and specified as 
such by name. Secondly, that when such arti- 
cles, so enumerated and specified, shall be 
found by the belligerent on board a neutral 
ship, the neutral shall be permitted to deliver 
them to the belligerent whenever, by reason of 
their bulk in quantity, such delivery may be 
possible, and then the neutral shall, without 
further molestation, proceed with all remaining 
innocent cargo to his destination, being any 
port, neutral or hostile, which at the time is not 
actually blockaded. 

Such was the early fixed policy of our coun- 
try with regard to contraband in neutral bot- 
toms. It *is recorded in several of our earlier 
European treaties. Approximation to it will 
be found in other European treaties, showing 
our constant effort in this direction. But this 
policy was not supported by the British theory 
and. practice of international law, which was 
especially active during the wars of the French 
Revolution; and to this fact may, perhaps, be 
ascribed something of the difficulty which our 
Government encountered in its efforts to se- 
cure for this liberal policy the complete sanc- 
tion of European States. But in our negotia- 
tions with the Spanish- American States the 
theory and practice of Great Britain were less 
felt ; and so, to-day, that liberal policy, embra- 
cing the two rules already stated touching con- 
traband, is among all American States the pub 
lie law of contraband, stipulated and fixed in 
solemn treaties. I do not quote their texts, but 
I refer to all these treaties, beginning with the 
convention between the United States and Co- 
lumbia iu 1824. 

Of course, this whole discussion proceeds on 
the assumption that the rebels are to be re- 
garded as belligerents, which is the character 
already accorded to them by Great Britain. It 
they are not regarded as belligerents, tlien the 
proceeding of Captain Wiikes is indubitably 
Illegal and void. I'o a political offender, how- 
ever deep his guilt — though burdened with the 
undying execrations of all honest men, and 
bending beneath the consciousness of the ruin 
which he has brought upon his country — the 
asylum of a foreign jurisdiction is sacred, 
wheth^er on shore or on sea; and it is among 
the proudest boasts of England, at least iu re 
cent days, that the exiles of defeated democra- 
cies as well as of defeated dynasties have found 
a sufg protection beneath her meteor flag. 
And yet tliis Power has not always accorded 
to other ilags what slie claimed for her own. 
One of the objections diplomatically presented 
by Great Britain at the beginning of the pres- 



ent century to any renunciation of the preten- 
sion of impressment was, '* tha,t facility would 
be given, particularly in the British Channel, 
by the immunity claimed by American vessels, 
to the escape of tro.it or s^'' (State Papers, vol. 3, 
p. 8G ;) thus assuming that traitors — the com- 
panions of Robert Emmett, in Ireland, or the 
companions of Home Toook, in England — 
ought to be arrested on board a neutral ship ; 
but that the arrest coulcl be accomplished only 
through the pretension of impressment. But 
this flagrant instance cannot be a precedent for 
the United States, which has always maintained 
the right of asylum as firmly as it has rejected 
the pretension of impressment. 

If I ara correct iu this review, then the con- 
clusion is inevitable. The seizure of the rebel 
emissaries on board a neutral ship cannot be 
justified according to our best American pre- 
cedents and practice. There seems to be no 
single point where the seizure is not question- 
able, unless we choose to invoke British prece- 
dents and practice, which beyond doubt led 
Captain Wilkes into the mistake which he com- 
mitted. In the solitude of his iship he consulted 
familiar authorities at hand, and felt that in fol- 
lowing Vattel and Sir William Scott, as quoted 
and affirmed by eminent writers,' rein fort;ed by 
the inveterate practice of the British navy, he 
could not err. He was mistaken. There was 
a better example ; it was the constant, uniform, 
unhesit.ating practice of his own country on the 
ocean, conceding always the greatest immuui- 
ties to neutral ships, unless sailing to block- 
aded ports — refusing to consider dispatches as 
contraband of war — "refusing to consider per- 
sons-, other than soldiers or otiicers, as contra- 
band of war ; and protesting always against an 
adjudication of personal rights by the summary 
judgment of a quar erdeck. Had these well- 
attested precedents been in his mind, the gal- 
lant capfain would not, even for a moment, havp 
been seduced from his allegiance to those prin- 
ciples which constitute a part of our country's 
glory. 

Mr. President, let the rebels go. Two wicked 
men, ungrateful to their country, are let loose 
with the brand of Cain upon their foreheads. 
Prison doors are opened; but principles are es- 
tablished which wi;l help to free other men, and 
to open the gates of the sea. Never before in 
her active history has Great Britain ranged 
herself on this side. Such an event is an epoch. 
Novus sceclorum nascitur ordo. To the liber- 
ties of the sea this Power is now committed. 
To a certain extent this cause is now under her 
tutelary care. If the immunities of passengers, 
not in the military or naval service, as well as 
of sailors, a^e not directly recognised, they are 
at least implied ; while the whole pretension of 
impressment, so long the pesfrof neutral com- 
merce, and operating only through the lawless 
adjudication of a quarter-deck, is made abso- 
lutely impossible. Thus is the freedom of the 
seas enlarged, not only by limiting the number 



14 



of persons who are exposed to the penalties of 
war, but by driving from it the most offensive 
pretension that ever stalked upon its waves. 
To such conclusion Great Britain is irrevoca- 
bly pledged. Nor treaty nor bond was needed. 
It is sufficient that her late appeal can be vin- 
dicated only by a renunciation of early, long- 
continued tyranny. Let her bear the rebels 
back. The consideration is ample ; for the sea 
became free as this altered Power went forth 
upon it, steering westward with the sun, on an 
errand of liberation. 

In this surrender, if such it may be called, 
our Government does not even " stoop to con- 
quer." It simply lifts itself to the height of its 
own original principles. The early efforts of its 
best negotiators — the patriot trials of its soldiers 
in an unequal war — have at length prevailed, 
and Great Britain, usually so haughty, invites 
us to practice upon those principles wiiich she 
has so strenuously opposed. There are victo- 
ries of force. Here is a victory of truth. If 
Great Britain has gained the custody of two 
rebels, the United States have secured the tri- 
umph of their principles. 

If this result be in couformity with our cher- 
ished fTtinciples, it will be superfluous to add 
other considerations 5 and yet I venture to sug- 
gest that estranged sympathies abroad may be 
secured again by an open adhesion to those prin- 
ciples, which already have the support of the 
Continental Governments of Europe, smarting 
for years under British pretensions. The pow- 
erful organs of public opinion on the Continent 
are also with -us. Hautefeuille, whose work on 
the Law of Nations is the arsenal of neutral 
rights, has entered into this debate with a di- 
rect proposition for the release of these emis- 
saries as a testimony to the true interpretation 
of international law. And a journal which of 
itself is an authority, the Reque des Deux Mau- 
des, hopes that the United States will let the 
rebels go, simply because *' it would be a tri- 
umph of the rights of neutrals to apply them 
for the advantage of a nation which has ever 
opposed and violated them." 

But this triumph is not enough. The sea- 
god will in future use his trident less ; but the 
same principle which led to the present renun- 
ciation of early pretensions naturally conduct 
to yet further emancipation of the sea. The 
work of maritime civilization is not finished. 
And here the two nations, equally endowed by 
commerce, and matching each other, while they 
surpass all other nations, in peaceful ships, may 
gloriously unite in setting up new pillars, which 
shall mark new triumphs, rendering the ocean 
a highway of peace, instead of a field of blood. 

The Congress of Paris, in 1856, where were 
assembled the plenipotentiaries of Great Brit- 
ain, France, Austria, Prussia, Russia, Sardinia, 
and Turkey, has already led the way. Adopt- 
ing the early policy of the United States, often 
proposed to foreign nations, this Congress has 
authenticated two important changes in re- 



straint of belligerent rights; first, that the neu- 
tral flag shall protect enemy's goods except 
contraband of war 5 and secondly, that neutral 
goods, except contraband of war, are not liable 
to capture under an enemy's flag. This is 
much. Another proposition, that privateering 
should be abolished, was defective in tv/o re- 
spects ; first, because it left nations free to em- 
ploy private ships under a public commission 
as ships of the navy, and, therefore, was nuga- 
tory; and, secondly, because if not nugatory, it 
was too obviously in the special interest of 
Great Britain, which, through her commanding 
navy, would thus be left at will to rule the sea. 
No change can be practicable which is not 
equal in its advantages to all nations ; for the 
Equality of Nations is not merely a dry dogma 
of international law, but a vital national senti- 
ment common to all nations. This cannot be 
forgotten ; and every proposition must be 
brought sincerely to this equitable test. 

But there is a way in which privateering can 
be effectively abolished without any' shock to 
the Equality of Nations. A simple proposition, 
that private property shall eajoy the same im- 
munity on the ocean which it now enjoys on 
land, will at once abolish privateering, and re- 
lieve the commerce of the ocean from its great- 
est perils, so that, like commerce on land, it 
shall be undisturbed except by illegal robbery 
and theft. Such a proposition will operate 
equally for the advantage of all nations. On 
this account, and in the policy of peace, which 
our Government has always cultivated, it has 
been already presented to foreign Governments 
by the United States. You have not forgotten 
the important paper in which Mr. Marcy did 
this service, or the recent efforts of Mr. Seward 
in the same direction. In order to complete 
the efficacy of this proposition, and still further 
to banish belligerent pretensions, contraband 
of war should be abolished, so that all ships 
may freely navigate the ocean without being 
exposed to any question as to the character of 
persons or things on board. The Pbight of 
Search, which on the occurrence of war becomes 
an omnipresent tyranny, subjecting every neu- 
tral ship to the arbitrary invasion of every bel- 
ligerent cruiser, would then disappear. It 
would drop, as the chains drop from an eman- 
cipated slave ; or, rather, it would only exist as 
an occasional agent, under solemn treaties, in 
the war waged by civilization against the slave 
trade; and then it would be proudly recognised 
as an honorable surrender to the best interests 
of humanity, glorifying the flag which made it. 

With the consummation of these reforms in 
maritime law, not forgetting blockades under 
international law, war would be despoiled of its 
most vexatious prerogatives, while innocent 
neutrals would be exempt from its torments. 
The statutes of the sea, thus refined and eleva- 
ted, will be the agents of peace instead of the 
agents of war. Ships and cargoes will pass 
unchallenged from shore to shore ; and those 



/ 



15 



rrible belligerent rights, under •whicli the 1 cause it could not ovt 
mmerce of the world has so long suffered, position of Great Brita 
rill cease from troublin£^. In this work our is come when this chai 
ountry bejran early. It had hardly proclaimed ; rights "has changed Vjs baud 
s own independence before it sought to secure ! pride." Welcome to this new allic 
similar independence for the sea. It had j ^^-^ ^^^g^^^ ^11 ^3^^^ excitement., . 
ardly made a Constitution tor its own Govern- ,, ^ • i • .. i ■ c 

ent before it sought to establish a constitu- j.^H Present trials, it only remains for us to ,p- 
tion similar in spirit for the government of the I liold the constant policy of «be Republic, and ^ 
sea. If it did not prevail at once, it was be- ' to stand fast on the ancient ways. *^ 



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